"That is because trademarked goods originating from the trademark owner may have nonphysical characteristics associated with them, including services, such thatsimilar goods lacking those associated characteristics may be believed byconsumers to have originated from the trademark owner and, lacking such traits,may mislead the consumer and damage the owner’s goodwill," wrote JudgeLourie.

However, the court went on to affirm the Commission's determination on no trademark infringement because SKF USA did not establish a material difference between substantially all of its own products and the gray market imported goods based upon post-sale technical and engineering services.

. . . [W]e agree with the Commission that a plaintiff in a gray market trademarkinfringement case must establish that all or substantially all of its sales areaccompanied by the asserted material difference in order to show that its goodsare materially different. If less than all or substantially all of a trademarkowner’s products possess the material difference, then the trademark owner hasplaced into the stream of commerce a substantial quantity of goods that are ormay be the same or similar to those of the importer, and then there is nomaterial difference. Indeed, if it cannot be said that substantially all of atrademark owner’s goods are accompanied by the asserted characteristic, then itmay properly be concluded that, in effect, there exists no material differencebetween the trademark owner’s goods and the allegedly infringing goods. We havereasoned before that "the consuming public, associating a trademark with goodshaving certain characteristics, would be likely to be confused or deceived bygoods bearing the same mark but having materially different characteristics."Gamut, 200 F.3d at 779. Conversely, then, a trademark owner’s argument thatconsumers would be confused by gray goods lacking an asserted materialdifference from the authorized goods is inconsistent with the owner’s own saleof marked goods also lacking that material difference from its own authorizedgoods. To permit recovery by a trademark owner when less than "substantiallyall" of its goods bear the material difference from the gray goods thus wouldallow the owner itself to contribute to the confusion by consumers that itaccuses gray market importers of creating. . . .

[Alhough] it was undisputed that 87.4% of SKF USA’s sales to authorized distributors were supported by the "full panoply" of post-sale technical and engineering services. . . ., [t]he Commission also found that "SKF USA’s bearings do not differ materially from respondents’ bearings" because "SKF USA has authorized the sale of SKF USA marked bearings by nonauthorized distributors, gray market distributors (including respondents), surplus distributors, and RBC/Tyson which we find are not predictably and consistently accompanied by post-sale technical and engineering services." Those are also findings of fact to which we defer.